AVINASH KUMAR SETIA,NEW DELHI vs. DCIT, NEW DELHI

O R D E R PER PRASHANT MAHARISHI, A. M. 1. This appeal is filed by the assessee against the order of the ld CIT(A)-XXVI, New Delhi [ The ld CIT (A)] dated 02.01.2015 for the Assessment Year 2009- 10, wherein, the penalty levied of Rs. 41,41,114/- u/s 271(1)(c) of The Income tax Act [ the Act] by the ld ACIT, New Delhi [ the ld AO] as per order dated 29.03.2014 was confirmation of the penalty. 2. The assessee has raised the following grounds of appeal:- “1. The learned CIT(A) erred in facts and in law confirming the penalty of Rs. 41,41,114/- which is not only bad in law but also against the facts and circumstances of the case.”

3. The brief facts of the case shows that the assessee is an individual who was assessed u/s 143(3) read with section 147 of the Act of Rs. 12942910/- wherein, an addition of Rs. 1.25 crores was made on account of undisclosed income. Consequently, the assessment was passed at Rs. 12943910/-. While making the addition the ld AO initiated the penalty proceedings in the assessment order stating that since the assessee has concealed the particulars of income and also submitted inaccurate particulars of income penalty u/s 271(1)(c) of the Act was initiated. Consequently, the addition of the above sum challenged by the assessee before the various forums was Page | 1 ultimately confirmed by the Hon'ble Delhi High Court in 395 ITR 235. Thus, the penalty order u/s 271(1)(c) of the Act was passed by the ld AO on 29.03.2014 levying penalty of Rs. 4141114/-. The above order was challenged before the ld CIT (A) who confirmed the levy of the penalty vide order dated 02.01.2015 which is challenged before us.

4. The ld Authorized Representative coming to the ground of the appeal submitted that at the time of making the assessment the ld AO has noted the satisfaction that „assessee has concealed the particulars of income and also submitted inaccurate particulars of income‟. At the time of levy of the penalty the order u/s 271(1)(c) clearly show that the „assessee has furnished inaccurate particulars of income‟ in the first para of the penalty order and in the 3rd para of penalty order it is stated that the „assessee has concealed the particulars of income‟. He further referred to the 4th para of the order stating that penalty was levied for „furnishing inaccurate particulars of income‟. He further referred to the notice of the penalty issued u/s 274 of the act dated 17/2/2014 where in none of the tow charges are struck off. He, therefore, submitted that there are inconsistent charges raised by the ld AO and no proper satisfaction with respect to the charges twin limbs of the default has been noted. He referred to several judicial precedents in this regard. For the sake of brevity all these judicial precedents are not mentioned.

5. Learned departmental representative vehemently supported the orders of the lower authorities and submitted that the addition has been confirmed by the honourable Delhi High Court in the present case and therefore the assessee has concealed the income. He further referred to the decision of the honourable Delhi High Court in case of Raj Hans Towers private limited vs Commissioner of income tax in 373 ITR 9 (Delhi) to support the case of the revenue.